Will the High Court Vindicate Vinson?

Justice Kennedy sounds surprisingly like the judge who struck down ObamaCare in toto.

By

James Taranto

March 28, 2012

(Note: We'll be on assignment again tomorrow, returning Friday.)

WASHINGTON--"ObamaCare defenders will call him a judicial activist," we wrote in February 2011 about Judge Roger Vinson of the U.S. District Court in Pensacola, Fla. "That is bunk. His ruling is the very model of judicial restraint."

We dropped in on the Supreme Court this morning and were pleased to learn that Justices Antonin Scalia and Anthony Kennedy appear to agree. Here's Kennedy, from the transcript, addressing Deputy Solicitor General Edwin Kneedler:

When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was--one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me can be argued at least to be a more extreme exercise of judicial power than to strike--than striking the whole.

And here's Scalia:

Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that? Or do you expect us to--to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?

At issue is the question of "severability"--whether a court that strikes down one provision of a law is obliged to toss the rest of the law with it. Vinson thought that he was in this case. The Obama administration, he wrote, had "conceded that the Act's health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself."

As ObamaCare made its way up the federal judiciary, Vinson was the lone jurist to accept the plaintiffs' argument that the individual mandate is not severable. The 11th U.S. Circuit Court of Appeals overruled him on that point, although it upheld his finding that the individual mandate was unconstitutional. All other judges hearing ObamaCare cases have either held the mandate unconstitutional but severable or held the mandate constitutional, thus rendering the severability question moot.

Oddly, the administration's position on the mandate's severability is one no judge has adopted: that it is partly severable. If it goes, Kneedler was there to argue, two other central provisions of the law--"community rating" and "guaranteed issue," which require insurance companies to issue money-losing policies to people who are already sick--must also fall, but the rest of the law should stand. This appears to have been a too-clever-by-half political calculation, based on the supposition that the justices would be more hesitant to strike down the mandate if it also meant striking down popular freebies.

By our lights, Kneedler was not a compelling advocate for the government's position. We suspect that is because he and his colleagues were still reeling from yesterday's oral arguments, in which Scalia and Kennedy, along with Chief Justice John Roberts and Justice Samuel Alito, asked a lot of tough questions of Solicitor General Donald Verrilli. (We didn't attend yesterday, but having read the full transcript, we agree with CBS's Jan Crawford that "Verrilli did a fine job w a mountainous task." His case, not his legal skills, was weak.)

The justices' evident skepticism about the government's claims took many legal observers (though not this columnist) by surprise. Just last week the likes of Linda Greenhouse and Dahlia Lithwick were proclaiming the case for ObamaCare a no-brainer, flaunting their own brainlessness as if it proved the point.

We're sure the solicitor general and his team are more circumspect, but we'll bet they were overconfident nonetheless. If the mandate falls--as it suddenly seems much more likely to do--the administration risks compounding its losses by urging the court to strike down more, even if not all, of the law. So Kneedler must have approached his work today with considerable ambivalence.

Scalia also argued that the question of severability is every bit as unprecedented as the constitutional question about the individual mandate:

This is really a case of first impression. I don't know another case where we have been confronted with this--with this decision: Can you take out the heart of the Act and leave everything else in place?

Kneedler was unable to cite a precedent to satisfy Scalia, but earlier Clement had mentioned a case that somewhat fit the bill: Buckley v. Valeo (1976), a free-speech challenge to Watergate-era campaign-finance restrictions:

In Buckley this Court looked at a statute that tried to, in a coherent way, strike down [sic; he means impose] limits on contributions and closely related expenditures.

This Court struck down the ban on expenditures, left the contribution ban in place, and for 4 decades Congress has tried to fix what's left of the statute, largely unsuccessfully, whereas it would have I think worked much better from a democratic and separation of powers standpoint if the Court would have said: Look, expenditures are--you can't limit expenditures under the Constitution; the contribution provision is joined at the hip. Give Congress a chance to actually fix the problem.

Justice Scalia put the matter this way, addressing H. Bartow Farr, the court-appointed lawyer who argued the position that the mandate could be struck down without affecting any other provision of the law:

Mr. Farr, let's--let's consider how--how your approach, severing as little as possible there--thereby increases the deference that we're showing to--to Congress. It seems to me it puts Congress in--in this position: This Act is still in full effect. There is going to be this deficit that used to be made up by the mandatory coverage provision. All that money has to come from somewhere.

You can't repeal the rest of the Act because you're not going to get 60 votes in the Senate to repeal the rest. It's not a matter of enacting a new act. You've got to get 60 votes to repeal it. So the rest of the Act is going to be the law.

So you're just put to the choice of I guess bankrupting insurance companies and the whole system comes tumbling down, or else enacting a Federal subsidy program to the insurance companies, which is what the insurance companies would like, I'm sure.

Do you really think that that is somehow showing deference to Congress and--and respecting the democratic process?

It seems to me it's a gross distortion of it.

As in yesterday's hearings, the four Democratic appointees ended up advocating for the administration's position more effectively than its own lawyers. Ruth Bader Ginsburg offered a metaphor in the course of questioning former solicitor general Paul Clement, who argued the case for the 26 states challenging ObamaCare:

Mr. Clement, there are so many things in this Act that are unquestionably okay. I think you would concede that reauthorizing what is the Indian Healthcare Improvement Act changes to long benefits, why make Congress redo those? I mean it's a question of whether we say everything you do is no good, now start from scratch, or to say, yes, there are many things in here that have nothing to do frankly with the affordable healthcare and there are some that we think it's better to let Congress to decide whether it wants them in or out.

So why should we say it's a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.

One problem for Ginsburg is that her views on severability are irrelevant, except in the unlikely event that she votes to strike down the mandate. If the mandate stands, that obviates the need to choose between a wrecking operation and a salvage job.

Anyway, in our view Judge Vinson had a better analogy. Last year he described ObamaCare as being "like a defectively designed watch, [which] needs to be redesigned and reconstructed by the watchmaker." The Supreme Court is competent to throw the watch out, and nothing stops Congress from making a new one.

(Carol Muller helps compile Best of the Web Today. Credits are suspended today owing to a shortage of time to read our emails. If you have a tip, write us at opinionjournal@wsj.com, and please include the URL.)

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